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Right to Farm Claim Does Not Hold Up for Oregon Farmers Growing GMO Alfalfa

Updated: Jul 9, 2020

By Ashley Ellixson

Green field (Photo by Edwin Remsberg).

This article originally appeared in Lancaster Farming, Southern Edition, Saturday, July 4, 2015.

On May 29, 2015, an Oregon Federal court issued its ruling in Schultz Family Farms, LLC v. Jackson County, addressing two legal topics seen frequently lately in the agriculture world: genetically modified crops and right to farm laws. The lawsuit began when the plaintiffs, several growers of genetically modified alfalfa in Jackson County, filed suit challenging the validity of Jackson County Ordinance 635, where voters approved a May 20, 2014, ban on growing genetically engineered plants in Jackson County. The ordinance was scheduled to take affect on June 5, 2015.

The court’s decision focused on the statutory construction of the Right to Farm Act, Jackson County Ordinance 635, and Oregon Senate Bill 863. First, the Court found that Oregon’s Right to Farm Act is meant to “protect farms and farming practices from urban encroachment” and that the legislature intended to protect farming practices “critical to the economic welfare of the state from the expansion of residential urban uses” of said land. The court further discussed the importance of the exception provided by the legislature based on farming practices which cause “damage to commercial agriculture.” The court provided that this exception shows that the Right to Farm Act does not protect just any farming practice.

The court then turned to Jackson County Ordinance 635 to determine its validity under the Right to Farm Act. Under the ordinance, 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 as the “modification of living plants and organisms by genetic engineering, altering or amending DNA using recombinant DNA technology such as gene deletion…”. The ordinance goes on to state that its primary purpose is to protect local farmers from “significant economic harm” which could be caused by “genetic drift” from GE crops.

Shovel in the middle of a field of crops (Photo by Edwin Remsberg).

Based on the text of both the Right to Farm Act and Ordinance 635, the court found that the ordinance intends to protect commercial agricultural products and falls under the exception in the Right to Farm Act.

In 2013, Oregon passed Senate Bill 863 which specifically related to local ordinances preventing the production or use of various types of agriculture seed. The plaintiffs claimed that Senate Bill 863 applied to Jackson County Ordinance 635. However, the court found that it was the intent of the legislature to allow the ordinance to go forward based on testimony that the intent of Senate Bill 863 was to “preempt counties from adopting their own ban on genetically engineered products with the exception of the election in Jackson County that’s already on the ballot.” The court said that it was clear that the Senate Bill was meant to preempt counties and other local government from enacting their own bans on GE seeds, but it was clear from the legislative intent that the legislature meant to carve out Jackson County Ordinance 635.

Ultimately, the Court determined that the Right to Farm Act does not prevent the ordinance, and that the ordinance is specifically authorized by Senate Bill 863. It is important to keep an eye on cases like this which happen in specific counties or regions throughout the country because although they are specific geographically, more and more have come up in past years and have the potential to be picked up by legislatures or government entities elsewhere. With issues like GE seeds and crops on the rise as well as right to farm law issues (which most states have), agriculture producers should stay abreast of the litigation and legal challenges arising not only in their own backyards but also those throughout the country.

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