concurring and dissenting:
The declaratory judgment of the district court is affirmed. The court’s injunction is affirmed but modified in part. The denial of attorney’s fees to plaintiffs is affirmed.
I respectfully dissent from Part I of the majority opinion. The majority opinion brings this court too far into the realm and province of legislative law-making, a function we are ill-equipped to perform.
Many cases have examined, in various contexts, whether forestry and its related functions are considered an “agricultural” pursuit. The only consistent feature running throughout these cases is their inconsistency in result.
In N.L.R.B. v. Scott Paper Company, 440 F.2d 625 (1st Cir.1971), the First Circuit held, in dicta, that “woodsmen” were not “agricultural workers” expressly exempted *1173from the National Labor Relations Act. Id. at 626-27 n. 3. This holding was based, in part, on a Ninth Circuit case which analyzed whether a construction activity was considered agricultural by examining “whether the activity in the particular case is carried on as part of the agricultural function or is separately organized as an independent productive activity.” N.L.R.B. v. Monterey County B. & C. Trades Council, 335 F.2d 927, 930 (9th Cir.1964) (emphasis in original), cert. denied, 380 U.S. 913, 85 S.Ct. 899, 13 L.Ed.2d 799 (1965) (quoting Farmers Irrigation Co. v. McComb, 337 U.S. 755, 760-61, 69 S.Ct. 1274, 1277-78, 93 L.Ed. 1672 (1949)). The First Circuit found that the kind of work done by these woodsmen [felling, topping, limbing, bucking and hauling trees] was wholly integrated into a complex, industrialized production process and was sensibly deemed non-agricultural. Scott Paper, 440 F.2d at 627 n. 3. From the beginning, the forestry industry has conducted itself as a separately organized, independent productive activity.
Recent federal cases have taken a slightly different approach in deciding whether forestry, logging, etc., are included in the definition of “agricultural.” In United States v. Norman G. Jensen, Inc., 550 F.2d 662, 64 C.C.P.A. 51 (Cust. & Pat.App.1977), the Court of Customs and Patent Appeals held that:
In light of the long-standing intent of Congress that “agricultural” be most broadly defined and of the legislative history of current laws showing that Congress has, since well before enactment of the [Tariff Schedules of the United States] TSUS, regarded the harvesting of a timber crop on a farm to be like any other crop in a general farm program, we hold that the use of Tree Farm log skidders in skidding logs on farms, including tree farms, is part of the process of harvesting timber crops and that such use is “agricultural” for purposes of item 692.30, TSUS.
Id. 550 F.2d at 668.
In deciding whether the use of log skid-ders to skid logs was “agricultural,” the court did an extensive examination of the definition of agriculture. See id. at 666-67. It found that older editions of Webster’s New International Dictionary (1913) and the then current edition of Funk & Wagnail’s Standard Dictionary (1963) both included the word “forestry” in their definitions of agriculture. While “the word ‘forestry’ was subsequently dropped from the Webster’s definition ... Funk & Wagnall’s continued to include it.” Id. at 667. Also, the court pointed out, “Webster’s definition [still] includes ‘harvesting crops’ and ‘the production of plants’ which includes trees.” Id. at 666. The court also went into an extensive discussion of the congressional intent to broadly define agriculture, as does the majority opinion. See id. at 667-68. Finally, of interest is a footnote in which the court stated:
Appellant points out that, of the fourteen witnesses who testified, four were employed as loggers and “were in agreement that, as loggers, they did not work on farms and did not consider themselves to be farmers.” From this, appellant argues that “the people engaged in logging as a commercial endeavor do not consider their work to be agricultural in nature.” However, such testimony on a question of law can hardly be considered binding on this court. United States v. O. Brager-Larsen, 36 CCPA, 1, 3, C.A.D. 388 (1948). The same is to be said for the testimony of one of appellant’s witnesses, a union official, that unionized skidder operators are members of the International Woodworkers of America, which does not represent agricultural or farm workers.
Id. at 667 n. 10. Although, perhaps not binding on the court, this testimony nevertheless indicates that common usage and understanding by commercial loggers is that they are not engaged in an agricultural endeavor.
A later case from the Federal Circuit recognized the narrow holding in Jensen:
The holding in Jensen was only that the use of that tractor for dragging logs “on farms, including tree farms” was an agricultural use of the tractors....
*1174United States v. Border Brokerage Co., Inc., 706 F.2d 1579, 1580 (Fed.Cir.1983) (emphasis added). Nevertheless, basing its decision on the rationale in Jensen (i.e., the congressional intent that “agriculture” be broadly defined and the legislative history of current laws showing that Congress has regarded the harvesting of a timber crop on a farm to be like any other crop in a general farm program), the Federal Circuit broadly held that “the growing of trees and the harvesting of them is an agricultural pursuit.” Id. at 1580-81. This holding was based on the reasoning that “the majority of the timber lands [including national and state forest lands] are either tree farms or operated in the same way as tree farms, and [] the existence vel non of a tree farm depends upon how it is operated....” Id. at 1581 (emphasis added). The cases of Jensen and Border Brokerage are well-reasoned, thorough cases analogous to, and supporting of, the majority opinion. Of course, in its broad holding, Border Brokerage was only deciding the definition of agriculture as it relates to customs and trade laws in determining whether an item is an agricultural implement. That case does not address the issue before us today.
Several state law cases discuss the relationship between forestry workers and agriculture. In Just-A-Mere Farm, Inc. v. Peet, 247 Or. 413, 430 P.2d 987 (1967), the Oregon Supreme Court, in examining a similarly worded statute,1 held that:
Although, with the development of selective cutting of timber, it is not uncommon to refer to timber as a “crop,” we do not think that in common parlance the growing of trees for the purpose of producing lumber is regarded as an agricultural operation....
Id. 430 P.2d at 989. The court found that the activities included in “agricultural labor”:
relate directly or indirectly to operations which are commonly regarded as assoei-ated with farming in its traditional sense, i.e., where the work performed is directly or indirectly connected with the production and sale of that which the land yields annually in the form of crops or animals. This, we think, was intended in defining “agricultural labor” in terms of “services performed * * * in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity....”
Id.
In Appleman v. Employment Division, 21 Or.App. 186, 534 P.2d 218 (1975), the court held:
We cannot view the raising of commercial timber seedlings as being an operation which is commonly regarded as associated with farming in its “traditional sense,” regardless of whether the seedlings are sold to others or retained and raised for timber. Although, as the court explained in Just-A-Mere, it is not uncommon to refer to timber as a “crop,” the growing of trees, or in this case seedlings, is not understood in the common parlance as an agricultural operation.
Id. 534 P.2d at 220 [footnote omitted]. The court further found that timber tree seedlings were not “agricultural or horticultural commodities” as these terms are commonly used and understood. Id. at 220-21.
Finally, in Mountain Credit v. Michiana Lumber & Supply, Inc., 31 Colo.App. 112, 498 P.2d 967 (1972), the Colorado Court of Appeals held, in deciding whether a log loader was farm equipment, that:
Defendants argue that timber is an issue of the soil and should be considered a farm product. As such, defendants would have us hold that the logging of timber is a farming operation and a log-loader used exclusively for harvesting timber is “equipment used in farming operations,” making filing with the county clerk and recorder the proper proce*1175dure. Farming in the traditional sense, however, pertains to preparation of soil, planting of seeds, caring for crops, and harvesting the yield at the end of the process. One can be a farmer of trees if they are grown from seed and cared for in a nursery setting, but the commercial logging of trees by a firm such as Loggers, Inc., is not farming. It is an industrial operation.
Id. 498 P.2d at 969. Furthermore, the court found that because “neither the statute nor the official comment make reference to logging, we do not think it proper to incorporate that enterprise into the definition of farming.” Id. I agree and believe we should exercise the same restraint.
Although each of these state law cases can be distinguished from the case at bar, I believe they reflect a commonsense approach to the determination of the issue at hand.2 In common parlance, the commercial logging industry is not ordinarily thought to' be an agricultural industry nor are commercial loggers and forestry workers considered to be agricultural laborers. Nor do I believe that the legislative intent and history support the majority view. From 1974 to the present, the crucial provisions and language of the Act have remained the same. The Act was thoroughly reviewed by Congress in 1983, yet no changes were made to extend the Act to commercial forestry and logging operations. Forestry is a common word. Legislators know it, understand it, and can use it. They did not.
The specific intent found by the majority is not expressed in the language of the Act. It derives from a stray remark by the Senate that “[t]he provisions of this bill and its penalties are intended to apply to such contractors.” 1974 U.S. Code Cong. & Ad. News at 6444. This issue was not addressed by the House nor was the remark or its substance included in the 1974 or 1983 amendments. If anything, this stray remark indicates Congress’ awareness of the difference between forestry and agricultural workers. The fact that there was no further mention or discussion of this issue suggests to me that the inclusion of forestry workers was considered and rejected by Congress.
. "Agricultural labor" includes all services performed:
“(d) in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, any agricultural or horticultural commodity, but only if such service is performed as an incident to ordinary farming operations....
. Other state law cases finding that forestry-related activities are not agricultural include: Plumfield Nurseries, Inc. v. Dodge County, 167 N.W.2d 560, 563, 184 Neb. 346 (1969); Sniegowski v. Bureau of Unemployment Compensation, 228 N.E.2d 679, 681, 11 Ohio App.2d 73, 40 O.O.2d 236 (1966); Kirby Lumber Corp. v. Hardin Independent School Dist., 351 S.W.2d 310, 312 (Tex.Civ.App.1961).