Oregon Farmers Growing GMO Alfalfa Lose Right to Farm Claim

Last week, an Oregon federal court issued an important ruling in Schultz Family Farms, LLC v. Jackson County dealing with two very important, hot-button issues in agriculture:  genetically modified crops and Right to Farm laws.   Although the opinion addresses only one local ordinance, and is binding only in Oregon, it raises issues that we have likely not seen the end of and could be seeing in other places across the country.


Factual Background

In May 2014, Jackson County, Oregon voters passed an ordinance banning anyone from growing genetically engineered plants in the county (“the Ordinance.”  The Ordinance is set to go into effect this week, June 5, 2015.

Several Jackson County farmers who have previously grown and are currently growing planted crops of Round Up Ready Alfalfa (grown from genetically modified seeds) filed suit.  They claimed that the Ordinance violates the Oregon Right to Farm Act and constitutes a Taking of private property without just compensation as the Ordinance would require the farmers to destroy the crops they planted without compensation.  Plaintiffs sought the Ordinance be permanently enjoined as violating the law or, alternatively, compensation for destruction of their property as a result of the Ordinance.

In response, Jackson County argued that the Ordinance did not violate the Right to Farm Act.  Further, they argued that a recent state law indicates the Legislature’s intent to allow the Jackson County Ordinance to remain in place.  Additionally, several interveners joined in the case in support of the Ordinance, including “traditional farmers” in the area who believe the Ordinance is critical to protect their crops from contamination with genetically engineered pollen.

Before the Court was a motion for summary judgment on the plaintiffs’ first claim–that the Ordinance was pre-empted by the Right to Farm Act.  The second claim–that the Ordinance resulted in a taking of private property without compensation–remains active and will be considered another day.

Legal Background

At issue in this case are two statutes and one ordinance.  Understanding each of them is important in order to understand the court’s ruling.

Jackson County Ordinance

The Ordinance provides that it is a “violation for any person or entity to propagate, cultivate, raise, or grow genetically engineered plants within Jackson County.”  Genetically engineered is defined by statute as including the “modification of living plants and organisms by genetically engineering, altering or amending DNA using recombinant DNA technology such as gene deletion, gene doubling, introducing a foreign gene, or changing the position of genes, and includes cell function.”  The purpose of the Ordinance is explained as being to protect local farmers who choose to grown non-genetically engineered crops from harm that can be caused by “genetic drift” from GMO crops.

Oregon Right to Farm Law

Oregon, along with all other states, passed a Right to Farm Act to provide an affirmative defense to agricultural operations facing nuisance suits from neighbors.  [To read more about Right to Farm laws, click here.]  Oregon’s Act states that “any local government…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.”  Sections 30.936 and .937 prohibit private nuisance or trespass claims against farming for forest practices on land zoned for farming or forests or for pre-existing practices allowed as a non-conforming use.  Both sections, however, include an exception for damage to commercial agricultural products or death or serious physical injury.

Senate Bill 863

In 2013, Oregon passed a bill specifically related to local ordinances preventing the production or use of various types of agricultural seed.  The bill provides that a local government may not enact or enforce a local ordinance to prevent production of an agricultural seed or product of such seed.  The bill contained an exception, however, for local measures that were proposed by petition on or before January 21, 2013 or approved by electors at an election held before May 20, 2014.  This exception unquestionably applies to the Jackson County Ordinance.

Court’s Opinion

The United States District Court for the District of Oregon issued its opinion last Friday.  [Read full opinion here.]

First, the court considered whether the Jackson County Ordinance violates the Oregon Right to Farm Act.  It found that it does not.  Specifically, the court reasoned that the purpose of the Right to Farm Act was to protect farms and farming practices from urban encroachment.  “In the conflicts that arise between active, functioning farms, and new, neighboring suburbanites, who inevitably find the farming practices loud, smelly, invasive, or simply irritating, the Oregon legislature has decided, as have many states, to tip the scales in favor of the farms.”

This protection, however, does to give free license for a farmer to use any farming practice, reasoned the court.  The court pointed to an exception under the Right to Farm Act that would allow lawsuits for damage to commercial agricultural products.  Because the purpose of the Ordinance is to prevent damage to non-gmo farmers from genetic drift, the court reasoned it fell within the Right to Farm Act exception and, therefore, did not violate the Act.

Second, the court found that the legislature specifically intended to allow the Jackson County Ordinance to go forward, based on both the statutory language and legislative history of Senate Bill 863.  The court reasoned that the legislative history or Senate Bill 863 makes clear that Oregon legislators intended to allow the Jackson County ban to go forward, even though it was prohibiting such local bans.  During committee discussion, the governor testified that the purpose of the bill was to preempt counties from passing GMO bans, with the exception of Jackson County, where the issue was already on the ballot.

In light of this, the court found that the Ordinance is valid under the Right to Farm Act and granted summary judgment to the defendants on the plaintiffs’ first claim.  It is expected that the decision will be appealed.

Why Do We Care?

This case brings together two very popular topics in agricultural law right now:  Right to Farm laws and genetically modified seeds.  Alone, each topic generates a great deal of discussion and buzz, but put together as they were in this case, makes for an even more interesting issue.

Additionally, farmers need to be aware of this issue and the potential for there to be laws passed that prohibit their use of certain crops.  While these laws are not common by any means, there have been more and more introduced in the last few years.  As the farmers in this case point out, being forced to destroy growing crops and to switch to producing different types of crops in the future is an extreme hardship.  Further, will this type of ruling have an impact on the development or use of genetically modified seeds?

Finally, this case is an example of a court narrowly construing a state’s Right to Farm Act as not protecting claims of farmers.  Again, while each state’s laws are different and this court’s opinion is not binding outside of Oregon, it should still be concerning to farmers when Right to Farm Acts are deemed not to offer the protection argued for by an agricultural producer.

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