Rogue River Valley Irrigation District v. Employment Division

LANGTRY, P. J. This appeal is the third of companion cases. See Klamath Irr. Dist. v. Employ. Div., 21 Or App 61, 534 P2d 190 (1975), and Talent Irr. Dist. v. Employ. Div., 21 Or App 83, 534 P2d 199 (1975). The petitioner irrigation district in this case was organized and exists, as do the others, under ORS ch 545. The Employment Division had determined, as with the others, that petitioner is subject to the unemployment compensation Act as it was amended in 1973. ORS ch 657. As with the Klamath and Talent districts, a relatively small part of petitioner’s delivered water is used for ornamental and gardening purposes on small tracts of land. It was testified that this nonfarm water constitutes approximately 3 percent of all water delivered. There is no dispute in this regard. The referee held that, on account of this small nonfarm use, the exemption of ORS 657.-045(2) (c) does not apply to petitioner. If that were all there is to this case, it would be reversed on the basis of the decision in Klamath Irr. Dist. v. Employ. Div., supra. [81] However, petitioner has conceded that it has five or six active accounts for commercially used water for log ponds, concrete mixing, etc. Water is sold to these accounts without reference to water rights running with any particular land. In other words, regardless of the amount of profit the district may make therefrom, that portion of its operation is for profit. This was an additional reason for the referee’s decision. ORS ch 657 was extensively amended in 1971, according to legislative history, in order to incorporate therein 1970 amendments that had been made by Congress to the Federal Employment Tax Act. One of the changes thus accomplished was to add to the irrigation exemption' the words “not owned or operated for profit.” The part in question was re-enacted without change in 1973 and provides that “agricultural labor” includes labor “* * * in connection with the operation or maintenance of ditches, canals, reservoirs or waterways not owned or operated for profit used exclusively for supplying and storing water for farming purposes.” ORS 657.045(2)(c). The summary of changes submitted by the Employment Division to the legislature at the time the 1971 amendment was under consideration simply related that the addition of these words was so “farm irrigation projects operated for profit will be covered.” House Judiciary Committee Minutes. Nothing more appears to have been said about this particular change. For the reason that petitioner concedes the sale of the commercial water is a profit operation, the referee correctly held the petitioner is subject to the Act. Affirmed.