June 3, 2015

Federal Judge Upholds Oregon County Ban on Planting of GMO Crops Despite Right to Farm Statute

A federal judge in Oregon has rejected an initial challenge to the ban on the planting of genetically engineered/modified (GMO) crops in Jackson County, Oregon. Jackson County Ordinance 635 was a ballot initiative put to a vote in May, 2014 and it passed by a 2-1 margin. In Schultz Family Farms, LLC v. Jackson County, (D. Ore. 2015) a group of local alfalfa farmers challenged the ban, due to go into effect later this year, citing Oregon’s Right to Farm Act. Right to farm laws have generally insulated existing farming activities from later-enacted prohibitions that would declare farming activities to be a nuisance or trespass. The plaintiffs claimed that they would be required to remove about 300 acres of herbicide-resistant “Roundup Ready” alfalfa in order to comply with the ordinance. The plaintiffs also claimed that the ordinance was prohibited by a recently enacted state law, Senate Bill 863 (the Seed Bill), that preempted any local bans on the planting of GMO crops. However, in the ruling, the judge stated: 
It is clear from the text and context of the Seed Bill that the Oregon legislature meant to preempt counties and other local  governments from enacting laws banning the use of GE seeds so that the GMO issue could be addressed on a state-wide, uniform basis.In  other words, the Seed Bill preempts laws precisely like the Ordinance. However, it is equally clear that the legislature meant to carve out a specific exception authorizing Jackson County Ordinance 635. 
Thus, the judge denied summary judgment for the farmers, finding that the challenged ban had specifically survived the statewide prohibition on local ordinance banning the planting of GMO crops, and Jackson County can continue with enforcement of the ordinance. The judge agreed, however, that Oregon now has a statewide preemption against any other similar ordinances. The order notes that Ordinance 635 contemplates possible interference with farming activities because of the planting of GMO crops, thus inadvertently aligning with the purpose of the more traditional right to farm laws: 
Section 2 of the Ordinance states the "findings" and gives the primary purposes of the Ordinance, one of which is to protect local farmers from "significant economic harm to organic farmers and to other farmers who choose to grow non-genetically engineered crops" that can be caused by "genetic drift" from GE crops. 
There are a few other jurisdictions with bans on the cultivation of GMO crops. Several California counties have bans in place, including Marin, Santa Cruz, Mendocino, Trinity, and Humboldt. Last year, a federal judge in Hawaii ruled that an ordinance banning cultivation of GMO crops in Kauai County was preempted by state law. Efforts continue to enact GMO crops bans in some jurisdictions; however, just last month, a ballot initiative banning GMO cultivation in Benton County, Oregon, was defeated by an over 2-1 margin. It is possible that the plaintiffs could pursue a regulatory taking challenge now to Ordinance 635, if they can demonstrate loss of all economic value of their property (Lucas v. South Carolina Coastal Council) or meet the demanding requirements of a balancing test derived from Penn Central Transportation Co. v. New York City. However, for now, this ruling is significant for its determination that a ban on GMO planting can coexist with a right to farm statute.

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