Oregon Farmers Bring Suit Against County GMO Ban

Two farms in Jackson County, Oregon have filed suit against a law banning the production of genetically modified crops.

If you remember back to May, Oregon voters in Jackson County and Josephine County both voted to ban the cultivation of GMO crops. Fortunately for Josephine County farmers, that county’s ban was not enforceable because it had been preempted by state law. However, in Jackson County, the ban was enforceable. At the time the ban was being publicly discussed, many voices in the ag community cautioned that passing the ban would hurt alfalfa farmers in the county. Alfalfa is a plant that grows and is harvested for up to 10 years, unlike corn and soybeans. The ban would require those farmers to tear out their crops, losing the invested money and the future profits.

Of course, here we are several months after the ban was passed and now those alfalfa farmers have filed suit, asking a state court to overturn the ban or force the county to pay $4.2 million.

According to the Mail Tribute, two farms are involved in the current lawsuit: Schulz Family Farms, LLC and James and Marilyn Frink. Mr. Schulz claims that the ban will cost his family $2.2million to pull out the current alfalfa crop and replace it with a much less lucrative crop. The Frinks are claiming $2million in damages, because they would be forced to destroy 200 acres of alfalfa crops. No doubt there are other family farms also hurt by this measure, so I would not be surprised if they filed similar lawsuits or joined the Schulz and Frink lawsuit.

I have not been able to get a copy of the Complaint (the initial document filed with the court to start the lawsuit), but media sources indicate that the farmers are arguing the county ban violates the state’s Right to Farm Act. The Complaint explains that under the ban GMO crops get lumped together with other farm nuisances – noise, vibration, odors, smoke, use of pesticides, and crop production substances – which are protected by the Act.

Its official name is the Oregon Agriculture Protection Act. Section 30.935 of the Act states:

Any local government or special district ordinance or regulation now in effect or subsequently adopted that makes a farm practice a nuisance or trespass or provides for its abatement as a nuisance or trespass is invalid with respect to that farm practice for which no action or claim is allowed under ORS 30.936 or 30.937.

Under the Act, a “nuisance” or “trespass” is defined as: “includes but is not limited to actions or claims based on noise, vibration, odors, smoke, dust, mist from irrigation, use of pesticides and use of crop production substances.” (You can read more about the Oregon Right to Farm Act here.)

The question then becomes, which law trumps? The issue in the lawsuit will (probably) be whether a ban on cultivation and production of GMOs – a generally accepted agricultural practice – is protected by Oregon’s Right to Farm Act.

So, you can see that the farmers are attempting to link the Jackson County ban on GMOs to a local government effecting a regulation on a farm practice – the cultivation of GMOs – to a nuisance or trespass. Even if the ban does not use the word “nuisance” or “trespass,” there is a strong argument to make that this is precisely the type of local regulation that the Right to Farm Act was drafted to avoid.

For example, if the residents of Jackson County found it unacceptable that farmers were employing diesel-powered tractors because they stir up too much dust, could they write a law outlawing the use of such machinery in farm operations? Certainly something like that should also fall under the Right to Farm Act. So too should the ban on cultivating genetically engineered crops.

As with most litigation, I imagine it will be some time before we know the outcome of this lawsuit, but I am very eager and hopeful that Jackson County farmers will come victorious on this issue. It would be absolutely dreadful if the Schulz and Frinks and all the other Jackson County farmers had to pull out acres and acres of perfectly healthy – and safe – crops simply because other residents of the county successfully executed a campaign of fear.

I will definitely follow the story and keep you posted!

By the way, if you are interested in reviewing the Right to Farm Act in your state, you can do so at the National Ag Law Center by clicking here.