PLF On 9th Circuit Biological Opinion

PLF statement on 9^th Circuit Upholding Delta Smelt Biological Opinion

Last Week, a panel of the Ninth Circuit largely upheld the federal government’s 2008 “biological opinion” for the delta smelt, a regulation under the Endangered Species Act has that triggered draconian restrictions on water deliveries from the federal and state water projects to the San Joaquin Valley and Southern California.

Pacific Legal Foundation (PLF) attorneys represent some of the farmers in the case who are challenging the biological opinion as an abuse of federal power based on questionable science and shoddy regulatory procedures.

Damien Schiff, a principal attorney with PLF who represents farmers in the case, issued this statement today, in response to the Ninth Circuit’s ruling:

“The Ninth Circuit has done a reverse rain dance for California, practically guaranteeing that the impacts of our current drought will be more devastating,” said PLF Principal Attorney Damien Schiff.

“The ruling gives judicial blessing to regulations that impose real punishment on people with only speculative benefits for a declining fish species. Under these draconian regulations, water is withheld from farms, businesses and communities from the Central Valley to San Diego based on sloppy science and ideological agendas.

“There’s a drought of common sense in the bureaucracies that impose these regulations – and in the perverse legal precedents that lead courts to uphold them. In one notorious precedent, TVA v. Hill, the U.S. Supreme Court said the Endangered Species Act gives absolute priority to species over everything else, including the general welfare of the human community.

“We must all hope that California’s water crisis – made worse today by the Ninth Circuit – can prod the U.S. Supreme Court to reconsider its past decisions that are leaving us so parched.

“Indeed, the one hopeful aspect of today’s ruling is there’s a possibility the smelt case could get to the Supreme Court. There, it might result in a decision that turns the tide of environmental law away from imbalance and zealotry, and back toward sanity.”

Patrick Cavanaugh2021-05-12T11:06:02-07:00March 17th, 2014|

PROPOSED DESALINATION PLANT IN SALINAS VALLEY

Salinas Valley Worried about Desal Plans

California American Water could threaten the ground water supply of the Salinas Valley where up to 60 percent of the vegetables and leafy greens are grown for the nation.

The water company, which serves about 100,000 people on the Monterey Peninsula, was ordered 20 years ago to reduce using their source of water from the Carmel River by 60 percent by 2016.

Norm Groot, executive director of the Monterey County Farm Bureau, commented, “They’re searching frantically to find an alternative source. Unfortunately, they have had twenty years to do that and the voters haven’t really been necessarily sympathetic and voted for their particular projects when proposed.”

“So, now we are to the point of looking at a desalination plant that is supposedly going to replace all that water from the Carmel River,” Groot said. “There are a number of issues there as well—not only the cost—but the energy footprint and a number of other things that really have some of the people here quite concerned right now.”

“The test well for the proposed desal plant may be fairy close to the shoreline,” Groot said, “but any water taken from that well could impact the Salinas Valley. I think our biggest concern is what is that cone of depression, which is a scientific term for the influence that a source water intake has in a particular area. And because of the confluence between the lower aquifer, the Salinas Valley Basin, and the shallow aquifer from which they propose to take the water, we really don’t know how large a cone of influence is going to be felt. And since the actual aquifer goes offshore quite a distance, there is potential for some sort of impact there.”

“We’ve been involved in the whole CPUC process for the Public Utilities Commission trying to insert our particular viewpoints into the process” Groot explained, “so that everyone is fully aware of the ramifications of placing the source water intakes over the aquifer. And what if pumping is determined to cause harm to source water that includes Salinas Valley, either brackish or fresh water?”

Patrick Cavanaugh2016-09-07T21:04:00-07:00January 9th, 2014|

ALRB ORDERS ELECTION AT GERAWAN FARMS

Statement by Ray, Mike, Dan and Norma Gerawan Farming on new ALRB Decision

Fresno, CA – Gerawan Farming congratulates our many workers who, this morning, prevailed in their fight for the most basic right in a democratic society – the right to vote. The Board’s November 1, 2013 Order Vacating the Regional Director’s dismissal of the Petition for Decertification is a victory for workers across this State. An election shall be held at Gerawan Farming on Tuesday, November 1, 2013 Order. For the first time in over 23 years, the UFW will face the will of the workers.

Today’s decision is an historic event. The victory belongs to those workers who never gave up hope that the Board would listen to their pleas.

We are humbled by the perseverance of so many workers who refused to give up in their quest to hold a secret ballot election.

For the second time this week, the Board overturned a decision by the Regional Director that would have snuffed out that right. In this latest decision, The Board makes it clear that the Regional Director’s “last minute,” “eleventh-hour charges” in a “late filed complaint” left the Board “with serious doubts as to the propriety of using that complaint to block the election.” The Board rebukes the Regional Director for failing to mention statements he made in Fresno Superior Court, where he told Judge Jeffrey Hamilton that Gerawan and the Board remedied some of the alleged unfair labor practice charges he now claims justify blocking the election.

On Tuesday, November 4, millions of Americans will go the polls to choose their elected officials. It is fitting that Gerawan workers will be given the chance on that same day to exercise that same sacred right to decide their own economic destiny.

The Board made the obvious, just, and long overdue decision to let an election go forward.

We congratulate every one of our workers.

Patrick Cavanaugh2018-05-06T20:57:54-07:00November 4th, 2013|

INTERVIEW WITH DAN GERAWAN

UFW and ALRB Want to Impose Contract on Gerawan Employees

“The UFW won an election to represent Gerawan workers 23 years ago; but then, after only one bargaining session, the union disappeared and hasn’t been heard from in 20 years,” Gerawan Farming said in a recent statement. “Last October, the union reappeared and is using decade-old legislation to now impose a contract on the employer and the employees without a vote.”

California Ag Today associate editor Laurie Greene interviewed Dan Gerawan this week on what he is going through regarding the UFW and ALRB.

Greene: Please introduce your company’s products, # employees, etc.

Dan Gerawan: Gerawan Farming Inc., which grows and ships under the Prima label, is the world’s largest peach grower and employs about 3,000 workers. The company also farms table grapes, nectarines, and plums. We are a family-owned and operated company. Despite our size, I farm with my father, Ray, my brother, Mike, and my wife, Norma. We are very hands-on; this is what we do.

Greene: There are press reports that Gerawan is having a dispute with the UFW. What is that dispute?

Gerawan: We are not having a dispute with the UFW. Our employees are having a dispute. As a company, our dispute is with the state government that is trying to force a contract on us without giving the workers an opportunity to vote. People need to understand that this is not a normal union situation; it has to do with a law being used for something it was never meant for.

Greene: What is your stance on employees having a vote?

Gerawan: We believe the employees should have a vote, and they have made it known they want a vote. They are not saying how they will vote; they just want a vote. When they often express their opinions to us, we stop them and say, “Don’t tell us your preference; we support your right to vote, that’s enough. Everything else is your choice.”

Greene: Can you describe the chronology of your circumstances with the UFW and ALRB?

Gerawan: We lost an election with the UFW in 1990. We had our only bargaining session in 1995. There was never a contract, and the union failed to continue bargaining. The union disappeared; they abandoned our workers.

To this day, we don’t know why. They have told us, “We have no legal obligation to tell you.” We responded, “But you do have a moral obligation. How can you come back after 20 years and tell our workers that you want 3% of their money or you are going to fire them?”

The UFW wrote us a letter in October 2012 saying, “We’re ready to negotiate.” At the time, we couldn’t believe it since the employees didn’t even know they were represented by the union and had been working quite happily earning the industry’s highest wages. But then attorneys explained to us that the UFW would force us into a mandatory process where the state would actually impose the contract on us and our employees, and we would have no right to opt out.

So, the UFW pretended to negotiate for a while. After just eight brief bargaining sessions over a three-month period, during which the UFW never made an economic proposal, the UFW suddenly asked the government to step in to write and impose a contract us.

Greene: Can you explain the Mandatory Mediation Law?

Gerawan: In 2002, the state legislature passed an amendment to 1975’s Agricultural Labor Relations Act. That amendment allowed for mandatory mediation to be imposed in ag labor situations. However, ‘mediation’ is a misnomer; it is really mandatory arbitration. The legislature passed the law in response to a few employers, including one employer (not us) who supposedly dragged out negotiations for many years, 20 years in that particular case.

When the legislature passed that 2002 law, their thought was that that if an employee votes for a union, they are voting for a contract. However, in most industries, employees vote for representation and negotiation for a contract. This is not a normal situation where the union comes in to negotiate, with power, backing up the workers, and then the two parties negotiate a mutual agreement. This is the union invoking a law that allows the state to literally force a contract on the employer and employees.

Keep in mind that the law was meant to remedy dragged-out negotiations. There were no negotiations here to drag out; the union had disappeared. There is nothing in the legislative history that shows the law was to be used in these situations. The UFW’s and ALRB’s stance is basically, “The letter of the law… says if you failed to reach an ‘agreement,’ we can invoke this.” We responded, “That implies that you tried to reach an agreement. You guys never tried. You went away.” Their response, “Well the law doesn’t say we had to try, so we are using that law now to impose a contract.”

Greene: How do you respond to ALRB’s accusations of coercion and forgeries?

Gerawan: The Company has done nothing to coerce any signatures. We do not know anything about forgeries. We don’t know how many there supposedly are. We don’t know who caused those forgeries, and by that I mean I don’t know if they are saying we caused them or the union caused them.

It doesn’t take any coercion for the highest paid employees in the industry to realize that it is wrong for a union to come back after a twenty-year absence and tell them they will take 3% of their pay or fire them—without a vote. Not even a vote to ratify any contract that might happen.

After hearing this for a few months and being harassed at their homes multiple times by UFW people, the employees, on their own, began a decertification effort. They started a petition and turned it in to the ALRB. Immediately, the UFW started filing unfair labor practice charges against us saying that we were coercing our employees. That is silly.

We did not coerce, and in fact we invited ALRB to go out to our fields to make sure the workers understood they have the right to vote however they want. The ALRB did that.

We also did that. My wife, Norma, and I met with all the employees and told them, “Do whatever you want, choose however you want to choose. But congratulations on having achieved that right through your petition. We are not asking how you will vote.”

Greene: Could the signatures have been forged after you submitted them?

Gerawan: I really don’t know. All I know is thousands of signatures apparently were delivered.

Keep in mind, the union does not want the employees to have a choice, and they are fighting hard to stop the employees from having a choice, especially when the adjudicating agency has shown overwhelming bias against the employer and the employees.

The ALRB’s role, under the Agriculture Labor Relations Act, is to protect employees’ rights as a whole and to cause peace in the fields (which we had before the UFW and ALRB came into the situation). So why is the ALRB stopping the employees from having their vote just because of a relatively few questionable signatures from an unknown source?

After all, this is merely a vote.

We need to keep in mind that this is a declining union that has been gone for twenty years, has done nothing for these workers, and has returned only to pick the pockets of the industry’s highest paid workers and not even allow them to have a vote. I think it is unconscionable that the ALRB has done nothing to stop it, but in fact has taken every opportunity to accommodate this travesty.

Greene: Gerawan Farming has claimed that the ruling by Silas Shawver, regional director of ALRB, failed to provide a count of signatures filed, the number needed for a vote, and the number judged invalid.

Gerawan: This is correct. The ALRB blocked the election citing forgeries and coercion. Mr. Shawver is refusing to give out any information.

My wife and I informed our employees that the ALRB regional director in Visalia canceled their vote because supposedly we and the management of our company coerced our workers’ signatures. Our employees told me flat out that the only coercion has come from UFW and ALRB themselves.”

To continue this interview, please press “more” below!

Greene: What is behind the ALRB’s finding that Gerawan directly assisted the petitioner and others in the decertification effort?

Gerawan: We have not directly assisted the petitioner. So, what the ALRB is saying is not true. It is simply did not happen.

When the employees turned in their petition, the ALRB did not announce an election. The employees got very upset and demonstrated at the ALRB office in Visalia to demand their right to vote.

ALRB did not respond, but subsequently cancelled the vote, citing forgeries and coercion. The regional director is refusing to give out any information.

So, on September 30,over 1,500 of our employees reacted by going on strike to protest the ALRB’s and UFW’s cancellation of the vote. We thought we’d be harvesting peaches and grapes that day, but we didn’t.

Greene: Did Gerawan support the stoppage?

Gerawan: Oh no, we did not support the stoppage. We support the workers’ right to choose. But we did not want to see work stopped because we had fruit to harvest that day. But because the workers did stop, the cost for us was significant.

Greene: In a statement you said, “It is unfortunate that our employees felt they needed to take such a drastic action to have their voices heard. We are still hopeful that [the board] will protect the workers’ right to choose.” Are employees grateful for your company’s advocacy or opposed?

Gerawan: The employees have told us that they are grateful that we support their right to choose. At no time have we ever expressed a preference to them one way or the other. We want them to choose.

Greene: What rights do the UFW and ALRB have?

Gerawan: The UFW itself doesn’t have much power because they have such a small membership and are declining, but they have been handed an inordinate amount of power by the legislature. With such power, the UFW no longer needs workers’ support. They no longer need to organize the way a normal union organizes. Their members are created by legislation, not a vote.

We are about to have a contract literally written for us by a state agency and imposed on us. No one signs anything. Neither we nor our employees can opt out.

This type of ag labor unrest hasn’t happened since the 60’s and 70’s, and back then it was completely the opposite of what’s happening now. Back then, the workers wanted union and government protections. Now, the workers are fighting to be free from union coercion and government imposition. It’s hard to believe that the very law that was created to protect farm worker rights is now being used to rob those workers of their rights.

Greene: Why do you think the UFW is targeting Gerawan Farms?

Gerawan: I think they are going after the old abandoned elections.

We have the highest paid employees in the table grapes and tree fruit industry. No one disputes that, not even the union.

By the way, the union has no contracts with table grapes or stone fruit farm employees, and they have not been able to secure any. The last contract they had was with a Hanford farmer, and after a few years, those workers voted to throw the union out.

Clearly we are the biggest target, especially for a union that now is barely 3,000 members. If they prevail against our employees, this would double their size. Overnight, the majority of UFW members will be co-opted members created by legislative fiat, not by worker choice. The UFW needs this badly because their expenses exceed their income, and this is all public knowledge.

Greene: What is the employer mandated to do?

Gerawan: To live within the terms of the contract. There will be no other option. As an example of what the imposed contract will do, it will throw out our meritocracy, which has been an important part of our success, and replace it with seniority. That’s something we specifically told the ALRB arbitrator would harm us.

We made it clear to the ALRB, “Do not mess with that. We have been a shining example of success in creating high wages in an industry that has had a lot of failures. Don’t mess with our formula for success, please.” They completely ignored our plea.

Imagine any business having a contract written by the state and imposed on them–wages, working conditions and everything else. It’s hard to believe that it is actually happening, especially when we’re already paying the highest wages and benefits.

Greene: Did they have to prove any wrongdoing to do this?

Gerawan: To invoke mandatory mediation there has to be an unfair labor practice. We were found guilty of an unfair labor practice in the 1990s after the election. I think it was for laying off a crew at the end of the season.

Now that the union has come back, we have more unfair labor practice allegations. For example, for the buses to Sacramento, that we had nothing to do with, we have an unfair labor practice charge against us. For the employee walk out, that we had nothing to do with and which cost us a huge amount of money, we have an unfair labor charge against us.

Who adjudicates them? The ALRB. A charge does not mean you are truly guilty of doing something; it only means that the union has accused you of something.

Greene: What are your other unfair labor practice charges?

Gerawan: There have been many. It seems to be part of the game. For example, last October, when the union came in, we felt compelled to let our employees know about this. With our lawyers’ review, we sent our employees a letter with the facts only, but we received an unfair labor practice charge just for that.

So, because the UFW suddenly decides to reappear after being gone twenty years, we can no longer communicate with our employees?

Once the union files an unfair labor practice charge, the ALRB investigates, which takes months. Then, they will often side with the union against the employer and file official changes, which will eventually be heard by an administrative law judge. It could be a year or more before the facts come out. Meanwhile, the ALRB and UFW use those charges to damage your reputation, even though there has been no proper discovery or hearing.

Plus, if the unfair labor charge is used to block an election, and the investigation takes months, then the available time window for the election will probably lapse, and the employees’ right to a vote will be taken away from them. The system actually seems designed for that to happen.

Greene: Is there a pattern of unfair labor practices against you?

Gerawan: They come in batches. We got seven a few days ago for the bus trip, the strike, for whatever they conjure up. The unfair labor practice charges are just one or two sentences. From the union standpoint, they fill out a form, and then ALRB does the rest. ALRB sends their team of investigators out to “prove or disprove the unfair labor practice,” but I do not think they want to disprove anything. The ALRB has shown a clear pattern of wanting to rob our employees of their right to choose.

Greene: Gerawan is well known in taking good care of their employees. With this in mind, what could the UFW offer that is missing?

Gerawan: First of all, wage-wise, we are far above the rest of the industry. In fact, many in the industry have told me that they cannot believe that this is happening to the company that pays the highest wages and offers the best working conditions.

So what could the UFW possibly offer? Whatever it is that the state feels it can force the grower to pay whether or not it makes sense or is viable for the business. Again, this is not a normal situation where union organizers represent workers at the bargaining table.

Greene: What is it like for your employees?

Gerawan: The employees have told me that they cannot believe this is happening to them. They say they left Mexico because of things like this. They said, “You wait Dan, we’re going to have a vote.” I said, guys, I hope you do, but you may not have the chance. The employees said, “What do you mean? This is America! When the state hears that all we want is to vote, then they will understand.”

I had to tell them that I was sorry that this it is such a tragedy. We all assume that we will have the simple basic right to vote, but apparently that’s not how it is anymore.

Greene: You have met with Sylvia Torres-Guillén, the general counsel with the California ALRB. How did your conversation go with her?

Gerawan: Yes, my wife and I met her during one of our hearings. She was very cordial. We both had just heard my attorney tell the Judge that ALRB was so biased that it would never let our workers have a vote. We told her that we hoped that she would prove my attorney wrong because our employees need her help to protect their right to vote.

She said she would let them vote if… at which point I politely interrupted and pleaded to her that it was her responsibility to get rid of the “if,” and to make sure the rights of the workers were protected so that peace would be restored to our fields.

Patrick Cavanaugh2016-10-25T21:53:22-07:00October 14th, 2013|

ENDANGERED SPECIES ACT OVERREACHES HUMAN RIGHTS

The Endangered Species Act Turns 40

A Statement by Rob Rivett, President, Pacific Legal Foundation.

This year the Endangered Species Act turns 40. President Richard Nixon, on December 28, 1973, signed into law one of the nation’s most powerful environmental laws. The law vested authority in the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration to enforce a wave of new regulations, and create a new relationship between homo sapiens and other species.

Soon after its passage, the U.S. Supreme Court declared it the most comprehensive law ever passed for the protection of species and that ESA enforcement must occur “whatever the cost.” Federal officials have used their power under the Act to regulate private property as if it were public land.

The degree to which the ESA has been successful is a matter of debate. Of the estimated $3 billion of taxpayer funds necessary to fund the annual operation of the ESA, less than 1 percent of the species in North America have been recovered out of more than 1,400 that have been listed. One undebatable fact is the law has created a flood of lawsuits, those filed to seek government acts, and those filed to limit them.

Since its founding in 1973 — the same year the Endangered Species Act (ESA) was enacted — Pacific Legal Foundation has been America’s watchdog in the courts to check and reverse government abuse of this and other environmental laws.

PLF has enough experience with the ESA to know that a well-intentioned law can completely turn the tables on common sense, sound science, and the fundamental freedoms of people. PLF believes in responsible stewardship of our land, water, and air for the benefit of people, the environment, and the species that inhabit it. The trouble comes when a law designed to help species harms the people who care for the environment — including farmers, ranchers, and foresters — those living and working in America’s “environment.”

The protection of the environment is only one of many competing and important social values in America. In an orderly society, no single value can be exalted “whatever the cost.” Environmental laws can and must be administered so as to safeguard, and not thwart, fundamental human needs and rights. Therefore, Pacific Legal Foundation has assumed a leading role in protecting constitutionally established limits on governmental power and ensuring individual freedom.

Nearly 40 years after its enactment, the Federal Endangered Species Act remains one of the nation’s most potent threats to our constitutionally protected property rights. Crafted by the Congress with the noble goal of saving species from extinction, and helping them to return to health, the law today has led to controversy and regulatory creep across our nation’s landscape.

Because Pacific Legal Foundation supports a balanced approach to environmental regulations — like the ESA, we’re taking the opportunity in 2013 to examine aspects of the law, with particular emphasis on past and current cases we’ve litigated.

During the course of the year, this landing page will feature PLF opinion articles, videos, podcasts, and news and information about current PLF cases.  Whether you are part of the “regulated community” or just a concerned citizen who values liberty and a thriving environment, I invite you to check in regularly on this page to see our latest postings and to give us your feedback.

Of course, as a nonprofit legal charity, Pacific Legal Foundation welcomes your charitable donations.

If you believe, as we do, that in protecting our nation’s environment, our constitutional rights should not be threatened or endangered by government agencies and activist groups, I invite you to become a supporter of PLF’s legal program.

Patrick Cavanaugh2021-05-12T11:06:03-07:00August 22nd, 2013|

ANOTHER BIOLOGICAL OPINION CHALLENGE

New Biological Opinion for Yuba River Dams!

According to the Association of California Water Agencies, a federal court ordered a new biological opinion (BiOp) for Daguerre Point and Englebright Dams this week.

U.S. District Court Judge Morrison C. England set a May 12, 2014 due date for the National Marine Fisheries Service (NMFS) to issue a new biological opinion, and told the federal government to not utilize the existing 2012 BiOp in the preparation of the new opinion or in any Federal Energy Regulatory Commission relicensing processes for the two dams.

Yuba County Water Agency, Nevada Irrigation District, Pacific Gas & Electric and other plaintiffs challenged the 2012 BiOp, which identified dam removal and other fish passage improvements as the preferred approaches to improve conditions for spring run Chinook salmon, steelhead and green sturgeon.

The local water agencies argued that fish passage improvements or dam removal would negatively impact water deliveries and hydropower generation, and imperil the award-winning Lower Yuba River Accord, a regional agreement benefitting agriculture and fisheries. Furthermore, the plaintiffs said the 2012 BiOp was flawed and violated key elements of the Federal Endangered Species Act and the Administrative Procedures Act.

England issued a stay of proceedings until the new biological opinion is done, and he denied a related lawsuit from a local environmental group seeking enforcement of the 2012 BiOp. He also ordered the Army Corps of Engineers, which maintains the two dams, to continue taking steps to improve fish habitat on the river.

Patrick Cavanaugh2021-05-12T11:06:03-07:00August 17th, 2013|

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