Change on the open range

On a mist-shrouded ridge above the Columbia River, the sound of the flock drifted off the Gorge like an echo from the past.

Amid a chorus of “baahs” and bleats, a shepherd on horseback led hundreds of sheep up a dirt road. As he paused, the ewes and lambs wandered. At a whistle, the dogs surrounded the herd, which condensed into a scampering swirl that spilled through an old gate, into long-unused corrals.

“The sheep move just like water,” said 64-year-old Max Fernandez, watching his flock gobble the weeds.

Fernandez – a man so attached to his ranch that he has already dug his own grave there – is one of just two open-range sheep ranchers left in Washington. His shepherds spend much of the year tending flocks on the move across leased public land in Klickitat County.

“We are people of season and people of grass,” he said.

Fernandez, however, has spent three years and $30,000 trying to ward off a collision between the ancient rhythms of sheepherding and a much more modern development: the state’s minimum-wage law, enacted by voters in 1988.

Two of Fernandez’s former sheepherders are suing him, saying they were entitled to the state minimum wage, instead of the $650-a-month minimum that the federal visa program allows. The state Supreme Court heard arguments in the case last week, with a ruling expected this summer.

Fernandez’s attorneys say the case has ramifications far beyond sheepherders. A change in the way the state Minimum Wage Act is interpreted, they say, could sharply increase the cost of hiring apartment managers, motel managers, home health aides and others who live at their workplace.

At a California hearing four years ago, Western Range Association executive director Dennis Richins testified against raising sheepherder wages.

“If the minimum wage is put on this, it will bankrupt the industry,” he said.

Since the early 1950s, the federal government has allowed foreign workers here on so-called H-2A visas. The U.S. Department of Labor sets a minimum salary for each H-2A job. In Washington, it’s $650 per month.

The H-2A sheepherders are recruited in Peru, Chile, Mexico and Bolivia by the Western Range Association, an industry group made up of American sheep ranchers from the 10 Western states. The group is a co-defendant in the case. The ranchers provide food, shelter and medical insurance. There are about 825 H-2A sheepherders in the United States now, down from 1,200 a decade ago.

The workers feed, water and herd the sheep, working with dogs to keep the flock from straying or eating poisonous weeds. They work long hours during the lambing season, helping with difficult births. Round the clock, the sheepherders must be available to help the dogs keep coyotes and other predators at bay. They often live in a tent or trailer at remote pastures, and rely on the ranchers for deliveries of food and water.

Five years ago, Heriberto Berrocal and Rafael Castillo walked off the job, according to Fernandez. They went to Columbia Legal Services, a nonprofit law firm that represents low-income people in civil cases. With the help of Columbia’s lawyers, the two men sued Fernandez, his wife and the Western Range Association. Instead of the $650 a month their contract stated, the men said they wanted to be paid minimum wage for the hours they worked. They said they worked at least 12 hours a day, which would be $2,052 per month.

It’s exploitation to pay sheepherders just $650 per month, said Lori Jordan Isley, managing attorney at Columbia Legal Services’ office in Yakima.

“It comes out to about $1.80 an hour,” she said. “I don’t think that’s an acceptable wage.”

A Superior Court judge threw out the case. An Appeals Court disagreed, saying that the men had a plausible argument, and that the case should at least go to trial. Now the Supreme Court must decide which court was right.

Washington’s Minimum Wage Act exempts some farmworkers and salespeople, forest fire fighters, newspaper carriers, elected officials and foreign seamen.

There’s also an exemption for workers who live at the work site, but Columbia Legal Services says it only applies to times when someone’s not actually working. If a sheepherder gets up in the middle of the night to scare off the coyotes, Berrocal and Castillo’s lawyers say, the worker should get at least minimum wage.

“The sheepherders aren’t asking to be paid for their free time,” Isley told the Supreme Court. “They’re asking to be paid for the time they actually spent working.”

She denied a request to interview Berrocal or Castillo for this story.

Fernandez’s attorney, Ryan Edgeley, argues that with sheepherding, there’s not a clear line between working and being off duty.

“What about sitting around the campfire having a cup of coffee?” he asked the Supreme Court. “They’re near the sheep and available to protect them, but are they working? They have chosen an occupation where you live with it.”

Washington is only one front in the battle to win better wages and working conditions for sheepherders.

Five years ago, Central California Legal Services surveyed local sheepherders about their work.

“We found conditions that are amazing that they exist in this century,” executive director Chris Schneider said in an interview. Drinking water was often kept in large algae-filled barrels. Many shepherds had no toilet or bathing facilities, no transportation and no phone or radio.

“We have run into workers who have injured themselves or gotten very ill, and they’re very much on their own,” said Schneider.

The workers often come from poverty-stricken areas and have no idea what their rights are in the United States, he said. And employers have near-total control over their lives.

Castillo, one of the workers suing Fernandez, complained about bad working conditions at a California ranch before he came to Washington. In a letter to the Western Range Association, he described drinking from rusty water barrels and having to go to the bathroom in fields, within eyeshot of motorists and other passers-by. The other sheepherders, he said, “are afraid to complain because if they complain they won’t be able to return to work here in the U.S.A.”

In 2000, California’s Industrial Welfare Commission refused to remove a minimum-wage exemption for sheepherders there. But it later voted to require wages higher than those established by the U.S. Department of Labor. Today, H-2A sheepherders in California get $1,200 a month, nearly double what Fernandez’s workers get.

Despite ranchers’ contention that paying higher wages will kill the industry, this is a pretty good time to be a sheep rancher. According to the American Sheep Industry Association, wool prices are the highest in five years, although still below prices a decade ago. And prices for live sheep and lamb meat – where ranchers get most of their money – are now at record highs.

Richins, with the Western Range Association, says the high prices are helping make up for many years of low prices. He emphatically denies that anyone’s being exploited.

“I say if they’re being exploited, why do they want to come back on a second, third, fourth or fifth contract?” he said. In Peru, he said, a sheepherder earns about $140 a month, with no room or board.

As for the working conditions, he said, sometimes a tent is all that can be brought in to remote pastures.

“City folks don’t understand the open-range situation with sheep,” said Richins, a fourth-generation Utah sheep rancher. “There’s no way you can pull a Hilton hotel on top of the Sierras.”

Asked about the lower wages in other countries, Schneider said it shouldn’t matter.

“We should not be setting wages in the United States based on what people earn in Third World countries,” he said.

On his ranch near Centerville on Monday, Fernandez leafed through paperwork compiled from the case. He’s outraged by newspaper clippings from Peru that say Washington is exploiting shepherds.

“It’s totally unfair to say that everyone’s treating people like slaves,” he said. Fernandez has sworn testimony from a former worker, describing him as generous and respectful. The worker said he returned home after four years with $22,000.

He has a letter from a local veterinarian who says Fernandez pays for his workers’ dental care and helps them set up CDs at a local bank, so their money can earn interest. He has payroll records showing that he gives his workers periodic bonuses ranging from $100 to $600. He shows a visitor the sheepherders’ wagons and their bunkhouse, where the living room is outfitted with a TV, a stereo and an old Macintosh computer.

Fernandez shows his gravesite, atop a rise on his ranch. It’s surrounded by yellow and purple flowers, with a 360-degree view of his land: his three teams of oxen, his dogs, his century-old barn and home, a stocky coyote watching from a nearby hillside. He says he’ll be there, to watch over his family, the grass and – hopefully – new generations of sheep.

“People don’t understand the connection of country people to their animals and their land,” he said.

In Yakima, from her office halfway up a 1930s art deco office building, Isley says that it’s not an assault on Fernandez’s way of life to ask for a fair wage for his shepherds.

“He’s free to continue that way of life,” she said. “He just has to comply with state law.”